IN THE CASE OF: BOARD DATE: 17 December 2019 DOCKET NUMBER: AR20180006325 APPLICANT REQUESTS: The applicant requests, in effect, that his previously- upgraded discharge be corrected to show a different, presumably more favorable separation code and narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement * DD Form 256A (Honorable Discharge Certificate), for the period ending 19 November 1970 * Witness Statement, dated 29 September 2015 * Department of Veterans Affairs (VA) Problems List, printed on 8 March 2017 * Extracts from Army Discharge Review Board (ADRB) Brief and Prehearing Review FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states that since his discharge has been upgraded his separation program number (SPN) 46A should no longer be applicable. 3. The applicant was inducted into the Army of the United States on 20 May 1970. 4. A DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows the applicant was found guilty by a Special Court-Martial on 8 September 1970 of disobeying a lawful order on or about 17 August 1970. He was sentenced to confinement at hard labor for four months and forfeiture of $62 pay for four months. 5. A psychiatric evaluation, dated 12 October 1970, found the applicant competent to understand and participate in board proceedings deemed appropriate by his command. He was diagnosed with a personality disorder manifested by resentment towards authority, with sociopathic tendencies. The examining psychiatrist recommended the applicant be separated from the service. 6. The applicant was notified on 11 November 1970 of his command’s intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unsuitability. 7. The applicant acknowledged receipt of the proposed separation notification on 13 November 1970 and acknowledged that he: * had been afforded the opportunity to be represented by counsel * elected not to submit statements in his own behalf * may be deprived of many rights and benefits as a Veteran under both Federal and State law * may encounter substantial prejudice in civilian life if he were issued a general discharge 8. The applicant's commander formally recommended his discharge under the provisions of Army Regulation 635-212, based on unsuitability. The separation authority approved the applicant’s recommended discharge on 17 November 1970 and directed the issuance of a DD Form 257A (General Discharge Certificate). 9. The applicant was discharged on 19 November 1970. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows: * he was discharged under the provisions of Army Regulation 635-212 * he was issued SPN 46A (unsuitability, apathy, defective attitudes and inability to extend effort constructively) * he was issued an under honorable conditions (general) discharge * he was credited with completing 3 months and 29 days of total active service 10. The applicant twice applied to the ADRB for an upgrade of his discharge. His requests were denied on 22 July 1977 and 12 September 1978. 11. The applicant twice applied to the ABCMR for an upgrade of his discharge. His request was denied on 21 February 2017. During the Board’s reconsideration of his case on 19 October 2017, the Board unanimously recommended denial of the applicant’s request. 12. After review of the findings, conclusions, and recommendations of the case, the Deputy Assistant Secretary of the Review Boards, on 15 November 2017 determined the applicant’s discharge should be upgraded to an honorable discharge. 13. The applicant was issued a new DD Form 214, which confirms he was honorably discharged under the provisions of Army Regulation 635-212, by reason of unsuitability with SPN 46A. 14. The applicant provides a self-authored statement detailing his experiences and treatment during advanced individual training. 15. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, and evidence in the records. The Board considered the applicant's statement, his record of service, the reason for his separation, and the Board's previous decision to upgrade the character of his service. The Board found sufficient evidence of mitigating factors to support a recommendation to change the reason and authority for his discharge. Based on a preponderance of evidence, the Board determined that the record should be corrected to show the applicant was discharged by reason of Secretarial authority with the appropriate separation code and regulatory reference recorded on a reissued DD Form 214. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-3, by reason of Secretarial authority and assigned separation code 213. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Personnel Separations – Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their corresponding reason for separation/discharge. The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations that identify reasons for and types of separation from active duty. The SPN of "46A" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability. 3. Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic policy for the separation of enlisted personnel. It was revised on 1 December 1976, following the settlement of a civil suit. Thereafter, the type of discharge and the character of service were determined solely by the individual's military records during the current enlistment. Thereafter, any separation for unsuitability, based on personality disorder, must have included a diagnosis of a personality disorder made by a physician trained in psychiatry. a. In connection with these changes, a Department of the Army memorandum, dated 14 January 1977 and better known as the "Brotzman Memorandum," was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for discharge upgrades based on personality disorders. b. A second memorandum, dated 8 February 1978 and better known as the "Nelson Memorandum," expanded the review policy and specified that the presence of a personality disorder diagnosis would justify an upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by a general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 5. Army Regulation 635-200, as then in effect, further provided in paragraph 5-3 that the separation of enlisted personnel for the convenience of the Government was the prerogative of the Secretary of the Army and would be accomplished only by his authority except as otherwise delegated. Army Regulation 635-5 (Separation Documents), as then in effect, provided that the separation code associated with discharge by Secretarial authority was "213." 6. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180006325 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1